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A HOOVER INSTITUTION ESSAY Go Big, Go Global SUBJECT THE NSA’S OVERSEAS PROGRAMS TO JUDICIAL REVIEW TIMOTHY H. EDGAR Aegis Paper Series No. 1605 The United States should stop being defensive about surveillance. America leads the world when it comes to rules to protect privacy in intelligence surveillance—if only because the rest of the world’s rules are so weak. Under the Foreign Intelligence Surveillance Act of 1978, a court must review electronic surveillance for intelligence purposes where the surveillance takes place in the United States, targets people in the United States, or targets American citizens or residents anywhere in the world. For all intelligence activities, including the signals intelligence activities of the National Security Agency, Executive Order 12,333 requires rules to protect the privacy of American citizens and residents. President Obama has extended some of these protections to foreigners, anywhere in the world. There is a robust system of intelligence oversight to enforce these rules. It includes offices of general counsel, inspectors general, civil liberties and privacy offices, outside privacy and oversight National Security, Technology, and Law and Technology, Security, National boards, and review by congressional intelligence and judiciary committees. Most democratic countries do not have anything like these rules and institutions for protecting privacy in intelligence surveillance. Nevertheless, these rules, including FISA, were primarily designed in and for a different era, before globalization and the Internet—an era of international telegrams, analog telephones, and conflict between rival superpowers. The basic premise of FISA is that surveillance programs inside the United States pose significant civil liberties issues requiring judicial review, while the issues posed by global surveillance programs should be left to the executive branch. In the late 1970s, that premise made sense. International travel and communication were exotic and expensive. After September 11, 2001, Congress expanded surveillance powers and amended provisions of FISA that had posed barriers to information sharing.1 These changes did not challenge the basic divide at the heart of FISA between domestic national security surveillance and global signals intelligence. In 2008, Congress enacted section 702 of FISA. Section 702 authorizes collection of foreign intelligence inside the United States, so long as the direct targets of surveillance are foreign citizens located outside the United States. As section 702 involves domestic collection of data and communications, it was seen at the time as another expansion of surveillance powers during the George W. Bush administration, justified (fairly or unfairly) by the need to combat international terrorism. In fact, section 702 has proved a valuable tool for collecting intelligence on international terrorism and other transnational threats, although it allows surveillance for much broader intelligence purposes.2 2 Section 702 expires at the end of 2017. The debate over reauthorizing it has begun. Supporters argue the law is vital, protects civil liberties, and should be extended without change. Civil liberties, privacy, and human rights advocates urge its expiration or, at a minimum, significant reforms. These include greater transparency about how often the NSA collects communications of Americans alongside those of foreigners. Advocates also urge tighter controls on queries of section 702 using identifiers belonging to Americans (so-called “backdoor searches”). In addition, they want an end to the use of section 702 to scan the Internet backbone (“upstream collection”) and a ban on the collection of communications that include identifiers of a foreign target, but are not to or from that target (“about collection”). Finally, American communications providers and Internet companies warn of the economic consequences of section 702, including lost business from foreign customers.3 While these concerns have some merit, it is a mistake for civil libertarians to view section 702 in an exclusively negative light. Section 702 is the first provision of FISA specifically intended by Congress to provide judicial review of broad programs of signals intelligence collection that do not intentionally target American citizens or residents or anyone inside the United States. As such, section 702 sets a positive example, albeit an ambiguous one, of subjecting the NSA’s global surveillance to review by all three branches of government. The most important thing that Congress and the next president should do in next year’s debate over section 702 is to broaden the conversation. The continuing fallout over Edward Snowden shows that global surveillance has touched a nerve in an interconnected world.4 A narrow focus on reforming section 702 and the programs it authorizes would be a missed opportunity for civil liberties, privacy, and human rights. In the Internet age, it is no longer desirable or even possible to protect the privacy of Americans while leaving the rules for most global surveillance programs entirely to the executive branch. Congress should use the debate over section 702 to think big. In 2017, Congress should bring the NSA’s global surveillance out of the shadows and under a legal framework that is designed for this century. Comprehensive reform would include three steps: • First, with a few specific exceptions outlined below, all NSA surveillance programs should be subject to FISA. The experience of section 702 shows that judicial review of global surveillance is feasible while preserving the effectiveness of signals intelligence. NSA surveillance should be subject to statutory limits and court review regardless of where and how data is collected and regardless of the nationality of the direct targets of surveillance. • Second, judicial review provides a way for the United States to limit surveillance of the citizens of some countries to international terrorism and other specific security threats. Timothy H. Edgar • Go Big, Go Global 3 Limits could apply to citizens of friendly democratic countries if—and only if—their governments agreed to limit their intelligence practices on a reciprocal basis and subject them to meaningful oversight, such as court review. Section 702 shows that courts can provide the effective limits on surveillance programs that would make such an arrangement credible and enforceable. • Finally, Congress should provide that signals intelligence programs be subject to meaningful challenge in the federal courts by those who reasonably fear surveillance, even if they cannot show their communications have actually been intercepted. Section 702 demonstrates that courts are capable of providing meaningful review to enforce constitutional guarantees, while accommodating the government’s requirements of flexibility, speed, and secrecy when it comes to complex intelligence collection programs. This three-part plan for comprehensive NSA reform is radical in conception. It subjects to scrutiny by Congress and the federal courts global surveillance programs that have previously avoided congressional and judicial oversight. Nevertheless, the experience of section 702 shows that reform can be implemented in a manner that would be modest in its practical impact on the operations and effectiveness of the NSA and other intelligence agencies. The United States has a robust tradition of constitutional checks and balances, along with substantial experience adapting those checks and balances to intelligence surveillance. In 1978, Congress passed FISA, which for the first time subjected national security wiretapping to judicial review. In 2008, Congress passed amendments to FISA that brought broad NSA programs directed at foreign targets under judicial review. Court oversight gives teeth to rules designed to prevent abuse. In both 1978 and 2008, there were fears the new requirements would overburden the intelligence community or impair its effectiveness. They proved overblown. This experience uniquely positions the United States for a leadership role. The United States already leads the world in mass surveillance. It should lead the world in mass surveillance reform. Step 1: Subject global surveillance programs to review by the Foreign Intelligence Surveillance Court. Today, the Foreign Intelligence Surveillance Act of 1978 subjects some intelligence surveillance—surveillance that intentionally targets Americans, or where collection is from a switch or a server on US soil—to independent review, involving all three branches of government. All other intelligence surveillance, including the NSA’s collection of satellite communications and essentially all of its collection overseas, whether directly or through allied intelligence services, is governed only by Executive Order 12,333. Part 2 of E.O. 12,333 requires rules to protect the privacy of US persons: American citizens and Hoover Institution • Stanford University 4 permanent residents, along with US corporations and organizations composed substantially of US persons. Under Presidential Policy Directive 28 (PPD-28), issued in January 2014, the NSA’s rules for US persons have been supplemented by guidelines that provide modest protection for the privacy of foreign citizens.5 Unlike collection under FISA, both the rules for US persons and the guidelines required by PPD-28 are administered entirely within the executive branch. The rules and institutions that FISA and E.O. 12,333 create—and the dividing line between these two regimes

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